Citation Nr: 21063663 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-37 518 DATE: October 15, 2021 ORDER Entitlement to total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The evidence does not establish to at least equipoise that the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § § 3.102, 3.340, 3.341, 4.16 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1982 to June 1986 and in the United States Army from October 2004 to January 2006 and from October 2009 to December 2010. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an April 2017 rating decision. In a March 2019 decision on claims for service connection for gastroesophageal reflux disease and increased rating for posttraumatic stress disorder (PTSD), the Board inferred that a claim for TDIU was reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised). The Board thus remanded the matter to allow for the Veteran to complete an application for TDIU (VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability.) 1. Entitlement to TDIU is denied. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. If the schedular rating is less than total, TDIU may still be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). In exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The central question in a TDIU determination is whether the veteran is unable to secure or follow a substantially gainful employment due to his service-connected disabilities. Hatlestad v. Brown, 5 Vet. App. 524 (1993). A finding of TDIU is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Notably, the question of employability is ultimately a legal one, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In May 2019, VA sent the Veteran a letter asking him to submit a completed VA Form 21-8940. To date, the Veteran has not submitted a completed VA Form 21-8940 or provided a response otherwise. A June 2020 supplemental statement of the case (SSOC) also informed the Veteran that he had not completed the requested VA Form 21-8940. The Board notes that VA must make reasonable efforts to assist a veteran in developing a claim (i.e. obtaining relevant employment information for a TDIU claim). However, the Veteran must also cooperate with the VA in furthering his claim. See 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c)(1); Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (noting that the VA's duty to assist is not a "one-way street" and that a claimant has a duty to cooperate with the VA in developing evidence to support a claim). The Board stresses the importance of a completed VA Form 21-8940 in developing a Veteran's claim for TDIU. Ideally, a substantially complete VA Form 21-8940 is very helpful in establishing entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. However, the record also shows that VA has followed its duty to assist and has provided the Veteran with ample opportunity to submit a completed VA Form 21-8940. Thus, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). Thus, the Board moves now to adjudicate this claim based on the evidence of record. The Veteran is service-connected for the following conditions: posttraumatic stress disorder (PTSD) with major depressive disorder, rated as 10 percent disabling prior to February 19, 2016 and 50 percent thereafter; obstructive sleep apnea, rated as 50 percent disabling since August 13, 2019; ulcerative colitis, currently rated as 50 percent disabling February 19, 2016; migraine and tension headaches, rated as zero percent disabling prior to July 18, 2017 and 30 percent disabling thereafter; bilateral tinnitus, rated as 10 percent disabling since June 27, 2014; a lumbosacral strain with degenerative disc disease and degenerative joint disease, rated as zero percent disabling prior to July 18, 2017 and 10 percent thereafter; a left knee strain with degenerative joint disease rated as zero percent disabling prior to June 22, 2018 and 10 percent disabling thereafter; a right knee strain rated as zero percent disabling prior to June 22, 2018 and 10 percent thereafter; a nasal bone fracture with rhinitis, rated as zero percent disabling prior to June 22, 2018 and 10 percent thereafter; left lower extremity radiculopathy rated as 10 percent disabling since June 22, 2018; right lower extremity radiculopathy, rated as 10 percent disabling since June 22, 2018; left ear hearing loss, rated as zero percent disabling since June 27, 2014 and eczema, rated as zero percent disabling since June 27, 2014. The Veteran's combined rating has been 10 percent beginning on June 27, 2014; 40 percent beginning on February 19, 2016; 60 percent beginning on July 18, 2017; 80 percent beginning on August 29, 2017; 90 percent beginning on June 22, 2018 and 100 percent beginning on August 13, 2019. The total combined rating has met the threshold requirements for schedular TDIU since August 29, 2017. A VA treatment note from March 2017 indicates the Veteran as employed full-time as an information technology manager. Other treatment notes from 2017 also confirm the Veteran's employment at that time. A September 2018 VA treatment note states "none found" in response to the query "Work/Occupation:". However, the note does not otherwise discuss limitations or an inability to work due to the Veteran's service-connected disabilities. Other VA treatment notes from 2018 describe the Veteran as able to exercise and exert himself, including biking and running. A May 2019 VA examination for sleep apnea found that the Veteran's sleep apnea limited his ability to work, citing daytime fatigue and poor concentration as limiting factors. However, the examiner did not state that the Veteran was totally precluded from working. The Board acknowledges that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. See 38 C.F.R. § 4.16(a). See also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). However, medical evidence addressing the functional effects of the Veteran's disability on his ability to perform the mental and/or physical acts required for substantially gainful employment is relevant to the unemployability determination. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Based on the foregoing, the Board finds that the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. The evidence indicates that the Veteran was recently employed as an information technology manager (i.e. at least as of 2017) and his current employment status is not known. The record does not otherwise indicate that the Veteran was precluded from obtaining and maintaining substantially gainful employment. Rather, the record indicates the Veteran is able to exercise and move about. As stressed earlier, the Veteran did not submit a VA Form 21-8940, which would have been helpful in developing a Veteran's claim as it would provide information regarding his educational background, work history and current work status. The Board is sympathetic to the limitations placed on the Veteran by his service-connected disabilities. However, such limitations have been contemplated and provided for under the currently assigned ratings. Given the entirety of the evidence of record, the Board finds that the weight of the evidence preponderates against a finding that the Veteran has been rendered unable to secure and follow a substantially gainful occupation. Accordingly, the claim for a TDIU must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.